Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Mira Vista Care Center, Inc., |
DATE: June 6, 2001 |
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Health Care Financing Administration
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Docket No.C-00-149
Decision No. CR777 |
DECISION | |
DECISION DISMISSING REQUEST FOR HEARING I dismiss the hearing requests filed on behalf of Mira
Vista Care Center, Inc. (Petitioner) pursuant to 42 C.F.R. � 498.70(b)
because Petitioner does not have a right to a hearing. I find that Petitioner
had no right to a hearing inasmuch as the Health Care Financing Administration
(HCFA) made no adverse initial or reconsideration determination in this
case concerning Petitioner's Medicare certification status. The determination
that HCFA made involved the classification of the reimbursement status
of the Petitioner. I. Background and material facts On December 7 and 17, 1999, respectively, Petitioner requested
a hearing of HCFA's reconsideration determinations to sustain its denial
of provider-based designation for Medicare payment purposes for Petitioner.
The requests were docketed as C-00-149 and C-00-187. In my Order dated
August 4, 2000, the aforementioned cases were consolidated and henceforth
referenced as Docket No. C-00-149. Case Docket No. C-00-187 was therefore
dismissed. Petitioner is licensed to own and operate a 94-bed skilled
nursing facility in Mount Vernon, Washington. Petitioner's Mount Vernon
location was Medicare certified. In 1998, Petitioner moved 30 of the 94
beds to United General Hospital (UGH), an acute care hospital located
in Sedro Woolley, Washington. In 1998, Petitioner filed an enrollment
application for certification of the UGH facility to participate in Medicare
and Medicaid. HCFA Ex. 2. By letter dated January 19, 1999, Petitioner
was advised by HCFA that, effective December 8, 1998, Petitioner's UGH
facility was certified by HCFA for participation in the Medicare program
as a skilled nursing facility and was issued a separate provider number.
HCFA Ex. 9. On July 5, 1999, Petitioner requested HCFA to issue a determination
to redesignate the UGH location as a provider-based facility and not as
a new Medicare provider. HCFA Ex. 11. By letter dated October 1, 1999,
HCFA denied Petitioner's request for provider-based status. HCFA Ex. 13.
Petitioner submitted a request for reconsideration of the HCFA determination.
HCFA Ex. 12, at 4-5. On October 21, 1999, HCFA advised Petitioner of its
decision to stand by its original determination. HCFA Ex. 14. On August 4, 2000, I granted HCFA leave to file a Motion
to Dismiss pursuant to 42 C.F.R. � 498.70(b) on the grounds that this
forum lacked jurisdiction to entertain this matter and, therefore, Petitioner
does not have a right to a hearing. HCFA submitted its Motion to Dismiss,
supported by 19 proposed exhibits (HCFA Exs. 1-19), on September 8, 2000.
Petitioner filed its response to HCFA's Motion to Dismiss, supported by
seven proposed exhibits (P. Exs. 1-7), on September 26, 2000. The parties
did not oppose the admission of the exhibits. I therefore accept into
evidence HCFA Exs. 1-19 and P. Exs. 1-7. On October 5, 2000, HCFA filed
a request for leave to submit a reply brief. Petitioner filed its opposition
to HCFA's request for leave on October 11, 2000. On October 16, 2000,
HCFA filed: (1) a response to Petitioner's opposition to HCFA's request
for leave; and (2) its reply to Petitioner's response brief. Petitioner
submitted its objection to HCFA's reply brief on October 27, 2000. In
that Petitioner has not been afforded the opportunity to file a surreply
regarding HCFA's Motion to Dismiss, out of fairness I deny HCFA's request
for leave to file a reply to Petitioner's response to HCFA's Motion to
Dismiss and reject its reply submission. I base my decision in this case
on the law, the evidence, and the parties' arguments contained in HCFA's
initial brief and Petitioner's response. II. Issues, findings of fact and conclusions of
law
The issue in this case is whether I have the authority
to hear and decide Petitioner's December 7 and 17, 1999 requests for hearing,
challenging HCFA's reimbursement classification determination that Petitioner
is not a provider-based facility as Petitioner contends. Because I find
that I do not have authority to hear and decide this case, I decline to
address the substantive issue raised of whether Petitioner satisfies HCFA's
criteria for provider-based reimbursement status.
I make the following finding of fact and conclusion of law to support my decision, set forth in bold below. I, then, discuss my finding in detail.
This case raises the identical issue heard and decided
in Metropolitan Methodist Hospital, DAB CR574 (1999), aff'd,
DAB No. 1694 (1999), Specialty Hospital of Southern California - La
Mirada, DAB CR630 (1999), aff'd, DAB No. 1730 (2000), and most
recently Comprehensive Mental Health Center of Baton Rouge , DAB
CR709 (2000), Comprehensive Mental Health Center of Alexandria,
DAB CR710 (2000), and Comprehensive Mental Health Center of Monroe,
DAB CR711 (2000), aff'd, DAB No. 1774 (2001). Under the regulations
which governed the aforementioned cases, a determination by HCFA concerning
classification of a provider for purposes of reimbursement is not a determination
which gives a dissatisfied party hearing and appeal rights. Similarly,
under those same regulations, I do not have the authority to hear and
decide a case in which the issue is reimbursement classification status.(1) Under both the Social Security Act (Act) and implementing regulations, an individual or entity is entitled to a hearing before an administrative law judge (ALJ) concerning specified actions by HCFA which are defined to be "determinations." If an action by HCFA is not a determination about which a right to a hearing is conferred by the Act and the applicable regulations, then no right to a hearing exists. The relevant language in the Act, which governs an individual's or entity's right to a hearing with respect to an action taken by HCFA, is contained in section 1866(h)(1). That section states, in relevant part, that:
The implementing regulation at 42 C.F.R. � 498.3(b) provides that HCFA makes initial determinations with respect to certain matters. These matters are defined to include:
42 C.F.R. � 498.3(b)(1). The question in this case is whether HCFA's denial of
Petitioner's request for provider-based classification instead of the
assignment of a separate provider number for the UGH facility is a determination
that the UGH facility was not a provider of services or a determination
that the facility did not qualify as a provider. HCFA did not determine
that the UGH facility did not meet the qualifications for certification.
HCFA's acceptance of Petitioner's request for certification and subsequent
assignment of a separate provider number to the UGH facility effected
only the manner in which Petitioner was reimbursed for services and not
the provider's certification status. This distinction is significant in determinating whether
Petitioner has a right to a hearing. With exceptions that are not relevant
here, hearing rights attach only to a determination of whether an entity
qualifies as a provider. Generally, hearing rights do not attach to HCFA's
classification of the type of reimbursement mechanism which governs an
entity. Under the regulations, certification is a process by which
a facility establishes that it meets the criteria which governs Medicare
participation. The certification process requires a survey of the facility
by HCFA or on HCFA's behalf in order to determine whether participation
requirements are met. 42 C.F.R. � 489.13. The certification process is
designed to establish whether the facility meets the quality of care requirements
that are contained in provider regulations that govern that type of facility.
Here, Petitioner's request for certification of the UGH
facility was granted. The subsequent issue before HCFA was whether a satellite
long-term care facility could be considered as "provider-based." HCFA
determined that this classification was not allowed and therefore assigned
the separate provider number. In short, these issues had nothing to do
with whether Petitioner's UGH facility met certification requirements. An appellate panel of the DAB recently issued a decision
on an analogous matter. In a consolidated opinion, an appellate panel
in Comprehensive Mental Health Care Center of Baton Rouge, Comprehensive
Mental Health Care Center of Alexandria, and Comprehensive Mental
Health Care Center of Monroe (Comprehensive), DAB No. 1774 (2001),
upheld the ALJ's determination that he lacked the authority to hear and
decide the issues before him. The petitioners in Comprehensive
had been certified by HCFA to participate in the Medicare program and
were classified by HCFA as free-standing facilities. The petitioners,
in their initial requests for certification, sought "provider-based" status
which was denied by HCFA. The ALJ in Comprehensive concluded that
"HCFA's determinations that petitioners were free-standing rather than
provider-based facilities involved classification of the reimbursement
status of petitioners" and "that the regulations at 42 C.F.R. Part 498
do not confer a hearing right on a provider that is dissatisfied with
the way in which HCFA classified it for reimbursement purpose." Comprehensive,
at 4. The appellate panel determined, inter alia, that an "initial
determination" under section 498.3(b) refers to the matters provided for
in that section of the regulations only. Id., at 8. The panel went
further to conclude that the petitioners were not "dissatisfied with HCFA's
determinations with respect to whether they qualify to provide services
as [a skilled nursing facility], but are dissatisfied with the HCFA determinations
with respect to whether they are free-standing or provider-based, a matter
not listed in section 498.3(b)." Id. Based on the foregoing, I dismiss Petitioner's hearing request because I have no authority to hear and decide this matter. |
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge
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FOOTNOTES | |
1. Effective January 10, 2001, relevant
sections of Title 42 of the Code of Federal Regulations were revised.
Specifically, 42 C.F.R.� 413.65(a)(2) now defines a "provider-based entity"
as: . . . a provider of health care services, or an RBC or
an FQHC as defined in 405.2401(b) of this chapter, that is either created
by or acquired by, a main provider for the purposes of furnishing health
care services of a different type from those of the main provider . .
. The definition of an "initial determination" at 42 C.F.R.
� 498.3(b)(2) was revised to include: Whether a prospective department of a provider, remote
location of a hospital, satellite facility, or provider-based
entity qualifies for provider-based status under � 413.65 of
this chapter . . . The amended regulations transferred authority to review provider-based decisions to the Departmental Appeals Board (DAB). However, all of the determinations made by HCFA in this case were made prior to the effective date of the aforementioned regulations. The amended regulations do not provide for retroactive application to matters initiated and determined prior to January 10, 2001 and are therefore inapplicable to the present matter before me. | |